Why the FBI Didn't Catch Tamerlan Tsarnaev

Reports that Tsarnaev was added to the government's terror watch list seems to bolster the argument that the marathon bombing is the result of FBI error. But that revisionism fails to take into account the scale and complexity of terror investigations.

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Reports that Tamerlan Tsarnaev had been added to the government's terror watch list seems to bolster the argument that the marathon bombing is the result of FBI error. But that revisionism fails to take into account the scale and complexity of how the government tracks terror suspects.

The terror watch list, as it's known, isn't really a watch list. For one thing, it isn't regularly watched. For another, it's not one list. It's more of a set of hierarchical, integrated databases which are checked under various circumstances, most notably when individuals want to travel. According to Reuters, after he was interviewed by the FBI in 2011, Tsarnaev was added to the Terrorist Identities Datamart Environment, or TIDE, which is compiled by the National Counterterrorism Center. It's a list that comprises over half a million names. "Because of its huge size," Reuters reports, "U.S. investigators do not routinely monitor everyone registered there, said U.S. officials familiar with the database."

In other words, there's a sort of pyramid of terror investigation. At the bottom of the pyramid are hundreds of thousands of people who've come to the government's attention for some reason. As the FBI and other agencies look into behavior and patterns, people can move up the pyramid — fewer people evincing more suspicious behavior — winnowing to a point once held by Osama bin Laden. Or, after a determined time, people can drop out of the pyramid entirely if they don't behave in a way that raises suspicion. That's the track Tsarnaev was on.

It's worth reviewing how Tamerlan first came to the attention of the FBI. According to The New York Times:

[T]he Russian government expressed fear that he could be a risk “based on information that he was a follower of radical Islam and a strong believer, and that he had changed drastically since 2010 as he prepared to leave the United States for travel to the country’s region to join unspecified underground groups,” the F.B.I. said in a statement.

The F.B.I. responded by checking government databases for any criminal records or immigration violations as well as activity on Web sites that promote extremist views and activities. The investigators found no derogatory information, officials said.

The FBI went back to their Russian contacts asking for more information that might prompt a more thorough search. The Russians didn't respond. At that point, the FBI sent agents to interview Tsarnaev and found no evidence of terror links.

But by looking into Tsarnaev at all, he entered that suspect pyramid. As National Journal reports, there are very specific rules dictating how the FBI can proceed with an investigation, established in the Domestic Investigations Operations Guide.

The guide allowed FBI agents to undertake an assessment of an individual, but it also spelled out how far that assessment could go and how long it could last if the trail of evidence ran cold or never existed in the first place. Agents had 90 days to keep a file open or close it. If there is no “derogatory information,” the file must be closed, and its very existence is not enough to subsequently prejudice the government against the individual.

The reason for this time limitation is simple: civil rights. The government cannot keep an open file on you forever, looking into everything you do. This is a feature, not a bug.

Though it can be buggy. So when Tsarnaev travelled to Russia last January, his status as a threat had already been set fairly low. In testimony before Congress yesterday, Homeland Security director Janet Napolitano outlined what happened at that point.

His flight reservation set off a security alert to customs authorities when he departed, Ms. Napolitano said, in spite of a “mismatch” in the spelling of his name on his airline ticket, his travel document and the passenger manifest of his flight.

As a result of “redundancies” in the system, the error was detected, the secretary said, and “there was a ping on the outbound to customs.”

But when Mr. Tsarnaev returned, more than a year had gone by since the F.B.I. closed a background review of his possible links to extremist groups that had been requested by the Russian government in January 2011. It was determined that he posed no threat. The security alert “at that point was more than a year old and had expired,” Ms. Napolitano said.

In other words, Tsarnaev's trip overlapped with the expiration date of the FBI's ability to look into him as a threat. He'd dropped out of the pyramid.

Late last year, Tsarnaev applied for his citizenship. As we outlined last week, this prompted a thorough review of his history. The Times reports that Homeland Security, which was conducting the review, found his 2009 domestic violence arrest and the FBI's review of any terror links, which found "no derogatory information." Nonetheless, Homeland Security put a hold on his application.

Which suggests that there was very little reason for the government to think that this particular person, one of half a million floating around in the terror watch system, posed more of a threat than others. Yes, when Tsarnaev returned from his Russia trip, he created a YouTube page featuring jihadist videos. Citing counterterrorism specialists, The Times notes that "[p]osting such videos alone, without overt threats of violence, should not necessarily sound alarms." It's easy to see this as a warning sign after the fact, but allocating FBI resources to investigate every person with a suspect YouTube page is hardly feasible.

This has long been a fear of government officials, the threat of a "lone wolf" lacking traditional indicators of terror links. Well before last week's bombing, The Hill reports, Congress was assessing how such a threat — one person acting essentially alone — could be curtailed. Senator Angus King of Maine asked that question of James Clapper, the Director of National Intelligence.

“We won’t know what we’ve missed until something blows up?” King asked Clapper during an April 19 Senate Armed Services Committee hearing.

Clapper replied quickly, “Yes, sir.”

There are just too many people displaying too many variants of suspicious behavior. Sometimes, one of those people who is a legitimate threat isn't detected.

Update, 5:38 p.m.: A report this evening from the Washington Post says that the CIA sought to have Tsarnaev added to the watch list as well.

The CIA’s request came months after the FBI had closed a preliminary inquiry into Tsarnaev after getting a similar inquiry about him from Russian state security, according to officials, who spoke on condition of anonymity because they were not authorized to discuss the matter.
This article is from the archive of our partner The Wire.